Brennan v Butler

[2004] QDC 265

DISTRICT COURT OF QUEENSLAND

CITATION:

Brennan v. Butler [2004] QDC 265

PARTIES:

LEANNE BRENNAN (Applicant)
v.
BLAYNE WARWICK BUTLER (Respondent)

FILE NO/S:

D29/2004

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court Ipswich

DELIVERED ON:

16/8/04

DELIVERED AT:

Ipswich

HEARING DATE:

16/6/2004

JUDGE:

Richards DCJ

ORDER:

Order that the respondent pay the applicant the sum of $15,000 by way of compensation for injuries caused by the respondent to the applicant.

CATCHWORDS:

Criminal compensation- contribution

COUNSEL:

 Fiona Muirhead (solicitor) for the applicant

No appearance for the Respondent

SOLICITORS:

Legal Aid (Queensland) for the applicant

1. On 29 November 2001 the applicant returned home from the local hotel.  Her de facto, the respondent, became aggressive when she decided that she wanted to chat to a friend at the caravan park.  He started to abuse her and her friend and an argument developed.  He grabbed the applicant by the hair and punched her in the face with a closed fist.  He then pushed her down a small hill, causing her to hit the fence at the bottom of the hill.  He continued punching her until he was restrained by others that were present.  She then left and went to her friend’s caravan, and the respondent went back to his caravan. 

1. About half an hour later the applicant decided that she would confront the respondent and approached him.  There were some further arguments where he began to yell at her and she indicated that she hated him, and then punched him in the eye.  The respondent then produced a metal bar and raised it above his head and hit her on the head on a number of occasions. 

1. She was taken to the Ipswich General  Hospital where she was seen by Dr Kylie Baker who reported the following injuries:

(a)        three full thickness lacerations to the scalp, two being approximately 2½ centimetres long and the third being four centimetres long;

(b)        partial skin thickness linear split on the right side of the upper lip;

(c)        an indistinct linear bruise on the inside of the left upper arm;

(d)        a large tender bruise with subcutaneous swelling to the posterior lateral aspect of the right upper arm;

(e)        a swollen and sore proximal phalanx of the right index finger with a graze overlying the dorsum of the proximal interphalangeal joint. 

1. Her scalp was treated with 14 staples and she was admitted overnight to check that she had no intracranial injury. 

1. She was seen by a Dr McGuire in relation to this matter on 24 February 2004, and she was diagnosed with post-traumatic stress disorder to a moderate degree.  Dr McGuire opines that the disorder will persist for some years but diminish in intensity.

1. She is suffering the following symptoms:

(a)        flashbacks to the attack;

(b)        trouble sleeping;

(c)        depression;

(d)        suicidal ideation;

(e)        difficulty expressing emotion;

(f)        feeling very frightened;

(g)        inability to leave her home except for short and specific reasons.

1. The applicant was very upset by the incident because she felt that when she was being hit with the steel bar that she could have been killed.  The incident has had significant effects upon her social life and her family life and she has become very overprotective of her son.  She says generally her attitude to life is more pessimistic and she may require future counselling. 

1. The applicant is entitled to compensation under the Act, and whilst it is clear that she retaliated to a degree towards her de facto, he was certainly the one who started the aggressive behaviour and his response to her retaliation was significantly out of proportion to that which she offered.  There was no excuse for him attacking her with the steel bar and causing the significant injuries that he did.  Accordingly, in my view, there is no contribution to be made to the injuries on her behalf. 

1. The applicant was a vulnerable person in terms of the offence in that she had a dysfunctional childhood characterised by sexual abuse.  Dr McGuire believes that her background rendered her more vulnerable to the physical abuse and her reaction to the physical abuse is to some extent dictated by her background.  However, Dr McGuire also goes on to state that the assault made a material contribution to her present clinical state and may have been responsible for approximately 80% of her post-traumatic stress disorder.  In those circumstances it seems to me that it is a case where the pre-existing vulnerability should not be used to discount the final award. The maxim that the respondent should take his victim as he finds that victim should be followed in this case. 

1. The applicant should be awarded compensation as follows according to the Schedule:

Item 2 – Bruising and laceration - 5%  $ 3,750

Item 32 – mental or nervous shock  - moderate – 15%  $11,250

Total – 20%  $15,000

1. I order that the respondent pay the applicant the sum of $15,000 being compensation for injuries caused on 29 November 2001 pursuant to the Criminal Offence Victims Act 1995.